ja in second circuit

8/7/2019 JA in Second Circuit

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05-6408-cv(L)06-5168-cv(CO N ), 06-5515-cv(CO N )

United States C ourt of Ap pealsfor theSecond CircuitONEIDA INDIAN NATION OF NEW YORK,

PlaintCounter-Def endant-A ppellee, v .

MADISON COUNTY and ONEIDA COUNTY, NEW YORK,Defendants-Counterclaim ants-A ppellants

BAND OF MOHICAN INDIANS and STOCKBRIDGE-MUNSEE,Interv enors-A ppellants.

ON REMAND FROM THE UNITED STATES SUPREME COURT

JOINT APPENDIX

S E T H P . WA X M A NCounsel of R ecordW I L M E R C U T L E R PI C K E R IN GH A L E A N D D O R R L L P18 7 5 P e n n sy lv a n i a A v e n u e , N . W.Wa s hin gt on , D C 20 0 0 6(20 2) 6 6 3 -6 8 0 [email protected] ttorney s for Plaintiff :Counter-Defendant-A ppellee

DAVID M. SCHRAVERCounsel of R ecordN IX O N P EA B O D Y L L P1300 Cl inton SquareR o c he s te r , N e w Y o r k 14 6 0 4( 5 8 5 ) 2 6 3 - 1 0 0 [email protected]

A ttorneys for Defendants-Counterclaim ants-A ppellants


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TABLE OF CONTENTSPage

Document

L etter f rom Seth P. Waxman to H onorable Wil l iam K. Suterd a t e d N o v e mbe r 3 0 10A 1O neida Indian Declarat ion of Irrevocable Waiver of ImmunityA 5L etter f rom Dav id M. Schraver to Honorable Wil l iam K. Suterd a t e d D e c e mbe r 1 , 20 1 0A 6L etter f rom Seth P. Waxman to H onorable Wil l iam K. Suterd a t e d D e c e mbe r 2 , 20 1 0A 1 0L etter f rom Dav id M. Schraver to Honorable Wil l iam K. Suterd a t e d D e c e mbe r 2 , 20 1 0A 1 413316647.1


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WILMERHALE

N o v e mbe r 3 0 , 20 1 0eth P. WaxmanHonorable W ill iam K . SuterC l er kSupreme C ourt of the United StatesO ne Firs t Street N .E.Washington, D.C. 2054 3

+1 202 663 6800(t)+1 202 663 6363(f)

[email protected]

Re: M a d i s o n Co u n t y a n d O n e id a Co u n t y , N e w Y o rk v . O n e id a I n d ia n N a ti o n o f N e w Y o rk ,N o . 1 0 - 7 2Dear General Suter :

I am wri t ing to inform you of a rece nt development in the above-reference d case. Thejudgments under review are permane nt injunct ions that prevent pet i tioners f rom foreclosing onrespondent ' s land for non-payme nt of c ounty property taxes. The dis tr ic t court enjoined theforeclosures on ac count of respondent ' s sovereign immun ity from sui t and on three othergrounds that were not addressed by the c ourt of appeals . Since cer t iorar i was granted,respondent O neida Indian N at ion ( the N at ion) has waived i ts sovereign immunity as to theenforcemen t of tax l iens on i ts real property. The waiver appl ies to the pending tax foreclosureproceedings directly at issue in this case and to all future tax foreclosure proceedings involvingthe N at ion 's land. I t was effectuated through a t r ibal declaration and ordinanc e duly enac ted byt he C o u n c i l o f t he O n e i d a N a t io n o f N e w Y o r k o n N o v e mbe r 29, 20 10 . The d e c l a ra t io n a n dordinance (a copy of which is enclosed) states, in relevant part:The N ation hereby waives, irrevoca bly and perpetually, its sovereign immun ity toenforcement of real property taxation through foreclosure by state, county andlocal governments within and throughout the United States . The N at ion does notwaive any other rights, challenges or defenses it has with respect to its l iabilityfor, or the lawful amount of, real prope rty taxes.

The N ation has taken this step to clarify that, as con templated by its prior posting of letters ofcredit co vering taxes on all lands at issue in this case, i t is prepared to ma ke paymen t on all taxesthat are lawfully due. In view of the foregoing waiver, respondent respectfully suggests that theC ourt may wish to direct the par t ies to address how this matter should proceed. C ounsel forrespondent has informed counsel for petitioners that respondent would not oppose modificationof the briefing schedu le in order to provide p etitioners an o pportunity to address thisdevelopment in their opening brief.

Background1. In C i ty o f Sherri ll v . One ida Ind ian Nat ion o f New Y ork , 544 U.S. 197 (2005) , thisC ourt held that the N ation could not unilaterally reacquire sovereign authority over its ancientlands through open-market transactions and that such lands therefore did not enjoy tribalWilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue NW, Washington, DC 20006

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WILMERHALEHonorable W ill iam K . SuterN o v e mbe r 3 0 , 20 10Page 2

immunity from taxation. Id. at 221. The C ourt s ta ted that "the proper av enue" for the N at ion toreestablish its sovereign authority lay in 25 U .S.C. 46 5, which au thorizes the Sec retary of theInterior to take land into trust for Indians and prov ides that such lands "shall be exempt fromState and local taxation." Id .

Promptly following this Court's decision in Sherrill, respondent appl ied to have 17,370acres of i ts fee lands taken into trust. In May 2008, the Secretary of the Interior granted theapplication as to 13,003 acres; however, the land has not yet been taken into trust , as petitionersand o thers have chal lenged the Sec retary 's dec is ion in l i t igat ion pending in the N orthern Distric tof N ew Yor k. 1 As p art of the t rust process , the Department of the Inter ior directed the N at ion toprov ide irrevoc able letters of cred it to satisfy outstanding tax liens on the N ation's land. Inrelevant part , the letters name petitioners as beneficiaries and pro vide for pa yment in full upon afinal judicial determination of the amo unts due; the letters cov er all land at issue in this l it igationand a re not c ont ingent on any of the land being taken into t rust . Respondent intended the le t tersto provide the ne cessary sec urity to petitioners so that the disputed issues regarding the amountsdue could be judicially determinedand those amounts promptly paidwithout regard to theN ation 's t r ibal sovereign immunity from sui t .Respondent also settled with the City of Sherrill and entered into a compact to govern

ongoing relations between the Nation and the City. S ee Second C ircuit Joint Appendix A16 33-1637. 2 It has been unable to reach a set t lement with pet it ioners , however , on ac count of theparties' substantial disagreements about whether taxes are due at all under state law, whether theN ation is l iable for penalties and interest for the period in which the lower courts held that notaxes were due, and over the assessed v alue of the N at ion 's propert ies . Ac cordingly, thel it igat ion with Madison C ounty (which began in 2000 ) cont inued af ter Sherrill, and the N at ionfi led a new act ion against O neida C ounty, On e i d a In d i an N a ti o n v . On e i d a C o u n t y , N o . 0 5 - c v -94 5 (N .D . N . Y .) , i n 20 0 5 .

2. The dis t r ic t co urt granted summary judgment to respondent in eac h of the cases belowand perm anently enjoined pet i t ioners f rom forec losing on the N at ion 's lands. The court providedfour separate grounds for the injunct ions: ( i ) the N at ion enjoys sovereign immunity from sui t ;(ii) the parcels at issue are subject to the federal statutory restrictions on alienation that app ly toIndian land; (ii i) the C ounties failed to give the notice required und er N ew York law in violation1 See U.S. Department of the Interior , Bureau of Indian A ffairs, Record of Decision: O neida IndianN ation of N ew York Fee- to- Trus t Reques t (May 2008) ; O pp. 4 & n. 2. A c opy of the Rec ord of Dec is ionis av ailable at ww w.oneidanationlegal.com/images/news/7.pdf.2 The N ation also reached a settlement with the City of O neida. Respondent will seek permission to lodgethe sett lement agreement with the C ourt at the appropriate t ime.

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of due process; and ( iv) the land in quest ion fal ls within N ew Yo rk's s ta tutory tax exemptions forland within an Indian reservat ion, N .Y. Indian Law 6 , and N .Y. Real Prop. Tax Law 454 . 3Pet. App. 41 a-46 a , 65 a-74a. The Second C ircui t aff i rmed the dist r ic t cou rt 's injunct ions on theground that the N at ion 's sovereign immunity from sui t barred the C ounties f rom foreclosing ontribal land. The court of appeals expressly declined to address the remaining three bases for theinjunctions. Id. at 23a. This C ourt granted c er t iorar i . 4

Two weeks af ter the Second C ircuit issued i ts decis ion, the N ew York C ourt of Appealsdecided Ca y u g a I n d ia n N a t io n o f N e w Y o rk v . G o u ld , 930 N .E. 2d 233 (201 0) , which held thatN ew Y ork's c igaret te tax exemption for sales on "reservat ion" land appl ied to lands that , likerespondent ' s , were reacquired within the boundaries of a federal ly recognized reservat ion af ter along period of dispossession, notwithstanding the lack of sovereign authority over such landsunder the reasoning of Sherrill. Id. at 245 , 248-25 0. The Cou rt of Appe als , however , expresslyreserved whether it would reach the same conclusion under the statutory provisions applicable toreal property taxes, which were relied upon by the district court in this case as an indep enden tbasis for its injunct ion and which remain a disputed issue of N ew Yo rk law. Id. at 251-252.

3. Following Sherrill, there is no dispute that the lands at issue in this case are subject tostate and local taxation as a matter of federal law. The parties continue to dispute whether thelands are exempt from taxation as a matter of N ew York state law under the provisions set forth

3 Sp ecif ica l ly, N ew Yo r k In d ian Law 6 p r o v id es:N o taxes shall be assessed, for any purpose whatev er , upon any Indian reservation in thisstate, so long as the land of such reservation shall remain the property of the nation, tr ibe,or band occupying the same.

In turn, Ne w York Real Property Tax Law 45 4 states:The real property in any Indian reserva tion owned by the Indian nation, tr ibe or bandocc upying them shall be exempt from taxation and exempt from spec ial ad valoremlevies and special assessments to the extent provided in section four hundred ninety ofthis chapter.

4 The petit ion for certiorari presented two questions for rev iew:1. whether tr ibal sovereign immunity from suit , to the e xtent i t should continue to berecognized, bars taxing authorit ies from forec losing to collect lawfully imposed taxes.2. whether the ancient O neida reservation in N ew York was disestablished ordiminished.

Pet. i . As noted above, the relevance of the second question presented turns on the antecedent questionof N ew York S tate law whether reservation lands l ike those at issue here are exempt from taxation.

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WILMERHALEHonorable W ill iam K . SuterN o v e m b er 3 0 , 20 1 0Page 4

in footnote 3 above; whether respondents ' foreclosure proceedings complied with due proc ess;and w hether petitioners should be liable for penalties and interest during the period in w hich thelower courts held that no taxes were due. Respon dent intended the le t ters of credi t issued incon nection w ith its trust application to assure petitioners that any taxes that are ultimately helddue would be paid without regard to t r ibal sovereign immunity. Pet it ioners , however , havequestioned the sufficiency of the letters of credit. Cert. Reply 6-7 & n.2. While respondentbelieves those le t ters of credi t to be adequateand to have already remov ed sov ereign immunityas an impediment to paymentrespondent seeks to assure petitioners and the Court that i t iscom mitted to paying any taxes that are ultimately held to be due onc e the disputed issues areresolved. The enclosed w aiver of sov ereign immunity is intended to fur ther ref lect thatcommitment .

Respectfully submitted,

Encl.Copies to: David M. Schraver, Esq.

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ATIO-

ONEIDA INDIAN NATIONDECLARATION OF IRREVOCABLE WAIVER OF IMMUNITY

Ordinance No.: 0-10-1TO OUR BROTHERS, on 2 December 1794, here at our homelands of the Oneida Nation, a

Treaty was entered into with the United States of America which reflected the unique and specialrelationship between our governments and recognized the costly and severe wartime sacrifices made bythe O neida people in a l l ianc e with the Americ an people in the War of I ndependenc e; and

B R O T H E R S , just one month before, on 11 November 1794, the United States made the Treaty ofCanandaigua, the United States' oldest treaty still valid, confirming, among other things, the ongoinggovernment- to- government relat ionship between the U nited States and the N at ion; and

B R O T H E R S , the Nation chooses to preserve its sovereignty and also its rights acknowledged bythe United States in its treaty relationship with the Nation, and also wishes to promote a peaceful andharmonious relationship with its neighbors today and unto the Seventh Generation; and

BROTHERS, that peaceful and harmonious relationship would be served by removing anycontrov ersy or doubt as to the N ation's ongoing comm itment to resolve disputes.NOW, THEREFORE, PURSUANT TO THE AUTHORITY VESTED IN THE NATION BYV I R T U E OF IT S S O V E R E I G N T Y A N D I N H E R E N T P O W E R S O F SE L F G OV E R N M E N T ,

The Nation hereby waives, irrevocably and perpetually, its sovereignimmunity to enforcement of real property taxation through foreclosureby state, county and local governments within and throughout the UnitedStates. The Nation does not waive any other rights, challenges ordefenses it has with respect to its liability for, or the lawful amount of,real property taxes.

E N A C T E D T H I S 29 th D A Y O F N O V E M B E R , 2 01 0.

Ray Hal 11 tterNation Representative


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NIXON PEABODYLLPATTORNEYS Al LAW1300 C l inton SquareRoches ter, N ew York 1460 4-1792( 5 8 5 ) 2 6 3 - 1 0 0 0Fax : (585) 2 63-160 0Direct Dial: (585) 263-1341E-Mail: [email protected]

D e c e mbe r 1 , 20 1 0

VIA E-MAIL AND FEDERAL EXPRESSHonorable William K. SuterC l e r kSupreme C ourt of the United StatesO ne Firs t Street N .E.Washington, DC 20543dmcnerney@supremecourt .gov

Re :adison County and Oneida County, New York v. Oneida Indian Nation ofN e w Y o rk , N o . 1 0 - 7 2Dear General Suter:We wri te on behalf of the pet it ioners , Madison C ounty and O neida C ounty, in reply tothe letter of respondent's counsel dated November 30, 2010, advising (p.1) that "respondentOneida Indian Nation (the Nation) has waived its sovereign immunity as to the enforcement oftax liens on its real property" by adopting a "tribal declaration and ordinance" the previous day,November 29, 2010. Petitioners and their counsel had no notice of this development untilyesterday af ternoon, when a col league of Mr. W axman c al led the undersigned co unsel a t thesame time the letter was being delivered to the Clerk's office. Petitioners' opening brief hasbeen sent to the printer, and is due to be served and filed in 48 hours. Counsel suggests thatpetitioners should now "address this development in their opening brief," and adds that his client"would not oppose modification of the briefing schedule" at this late date. (P.1.)

Petit ioners disagree , and suggest that this "developm ent" appears to be a c lassic exampleof a litigant "attempting to manipulate the Court's jurisdiction to insulate a favorable decisionfrom review." City of Erie v. Pap's A.M, 529 U.S. 277, 288 (2000). Indeed, petitioners areunaware o f any other c ase in which a par ty has aggressively l i tigated an issue for ful ly 10 years including up to this C ourt and then back once more and then at tempted to moot the issuethrough purely unilateral action taken after this Court had granted certiorari a nd after briefing onthe merits was already underway. As this Court observed in an analogous but less egregioussituation, "[i]t is no small matter to d eprive a li t igant of the rewards o f i ts efforts, particularly in acase that has been litigated up to this Court and back down again. Such action on grounds ofmootness would be justified only if it were absolutely clear that the litigant no longer had any

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need of the judicial protection that it sought." Adarand Constructors, Inc. v. Slater, 528 U.S.216 , 224 (20 0 0 ) (p e r c u r i a m).That standard has not remotely been met by the "development" announced in counsel'sletter. To begin, in adopting the tribal declaration and ordinance (attached to the letter), theN ation makes c lear that i t "chooses to preserve i ts sovereignty" and reci tes that i t adopts thedeclarat ion and ordinance "by vir tue of i ts sovereign and inherent powers of self -government."If the N ation has the sovere ign authority to take this action, i t must nec essarily have thesovereign authori ty to repeal the declarat ion and ordinance whenever i t may c hoose to do so.This declaration is no more f inal, i r revocable and perpetual than the N at ion chooses i t to be.Moreover, it is well known that sovereign waivers of immunity have sometimes been invalidated

on the grounds that they violated that sovereign's own laws. S e e , e .g ., W i s c o n s i n v . H o - C h u n kNation, 512 F.3d 921, 925-26, 937-38 (2008) (discussing situation in which State's waiver ofsovereign immunity through i ts Gov ernor was subsequently inval idated by i ts courts under s ta telaw). Beyond the passing observation that the tribal "declaration and ordinance" were "dulyenacted" this week (p. 1), the letter offers no assurances as to its validity or reliability. Indeed,the fact that it took counsel so long to convince his client to adopt this "waiver" hardly inspiresconfidence in its durability.

Nor is the true scope of this purported "waiver" at all certain. Indeed, counsel's letterdoes not descr ibe the declarat ion and o rdinance as a change at all , but merely as intended "toclarify that . . . [the N ation] is prepared to make payment on al l taxes that are lawful l y due,"apparently through the "irrevocable letters of credit" that i t has proposed as part of the pendingland-into-trust process. (Pp. 1-2, emphasis added.) The letter adds the qualifier that the"waiver" is intended "to assure petitioners and the Court" as to the "sufficiency of the letters ofcredit." (P. 4.) But the Nation already argued its letter-of-credit defense at length in itsopposition to certiorari, and pe t i tioners demonstrated in their reply in support of certiorari whyle t ters of c redi t in the context of the separate land-into-t rust proceedings are a wholly inadequatesubstitute for the timely payment of taxes that have now been due and owing for years. SeeReply Br. at 6-7 &n.2. Moreover, the waiver on its face appears to be limited to foreclosurebased on nonpayment of taxes, as opposed to the nonpayment o f the addi t ional interest andpenal t ies that have pi led up ov er the past decade while the underlying taxes have gone unpaid.Such a limited waiver is wholly insufficient to give petitioners the real property foreclosureauthority and powers to which they are entitled.

In addition, as petitioners argue in their merits brief to be filed Friday, the Court 'sdecision in C i ty o f Sherri ll v . One ida Ind ian Nat ion o f New Y ork , 5 4 4 U . S . 197 , 214 & n . 7(2005 ) , specif ical ly addressed whether the N at ion 's sovereign immunity could be raisedoffensively or defensively as to the enforcement of tax l iens on i ts real property; and the C ourtdecided this issue against the N at ion, holding that the N at ion may not asser t tax immunitydefensively in the evic t ion proceed ini tia ted by Sherrill. Since the C ourt has previously decidedthat the N at ion has no r ight to asser t sovereign immunity to prevent the enforcem ent of taxes asto i ts recent ly-acquired fee property at issue , the N at ion purports to "waive" an aspect

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of sovereign immunity it does not have. The Nation's declaration is therefore a nullity as amatter of federal law under Sherrill. O ne canno t "waive" a "r ight" one does not have.Counsel's letter notes (p.2) that the litigation with Madison County began in 2000. Forthe past ten years , O IN has s teadfast ly maintained that it wil l not pay taxes , even af ter this C ourtdecided Sherrill. This eleventh-hour, unilateral action by the Nation -- after ten years ofl i t igation, after this C ourt granted certiorari, and three days before petitioners' merit brief is to befi led -- a t tempts to evade a decis ion by the C ourt on the meri ts of the f i rst quest ion presented.We do not think this question is rendered moot by the Nation's action, and counsel's letter nevermentions mootness. But if the Nation thinks its action this week now renders the first questionmoot, then a motion to dismiss for mootness or a suggestion of mootness (Rule 21.2(b)) wouldseem to be the appropriate way to raise the issue, which should then be fully briefed by theparties. As part of any such suggestion or motion, the Nation should clarify the mattersdiscussed above, as well as specifying precisely what relief it is proposing here. Is it suggesting

that the favorable decisions it obtained below now be vacated? Is it proposing to dismiss withprejudice its allegations of sovereign immunity over these lands? Will that dismissal withprejudice include other c la ims of sovereign immunity against the enforcemen t of val id s ta te andlocal laws with respect to these lands, or just the specific taxes, interest , and penalties that haveaccumu lated here?C hief Justice Rehnquist suggested that the C ourt "should adop t an addi t ional except ion toour present mootness doc tr ine for those cases where the events which render the case mo ot[which we deny in this case] have superv ened s ince our grant of certiorari . . . ." Honig v. Doe,484 U.S. 305, 331-32 (1988) (Rehnquist, C.J. concurring); see id. at 331 (noting that "the case orcontroversy requirement of Art . III . . . is an a t tenuated connec t ion that may be ov err idden where

there are strong reasons to override it."). Whether or not the Court agrees with Chief JusticeRehnquist 's suggestions, there are strong reasons to con sider carefully the N ation's attempt toprev ent the C ourt from reac hing the first question presented a t this late stage of the lit igation,af ter the expenditure of very s ignif icant t ime an d resources by pet i t ioners , and af ter this C ourt 'sdecis ional process is under way.As counsel's letter makes clear (pp.2-3), there are many other questions to be resolved inthis litigation, including the second question presented to this Court (whether the ancient Oneidareservat ion in N ew Yo rk was disestablished or diminished) and the other quest ions not reac hedby the Second C ircui t (due proce ss , Indian Trade and Intercourse Act , and exemption under s ta telaw if the reserva tion is "not disestablished"), as well as issues regarding whe ther the N ation is

liable for interest and penalties and the assessed value of the Nation's properties. The Nation isnot, by its action, indicating a willingness to end the litigation but rather seeks a determination of"any taxes that are ultimately held to be due once the disputed issues are resolved." (P.4.)Because petitioners' merits brief is essentially final and is at the printer, and because it isnot c lear what exact ly the N at ion has purported to waive and toward what end, we do not think itis appropriate to address issues raised by counsel's letter in that brief or to seek to delay themerits briefing schedule. Rather, if the Nation thinks its unilateral action this week is sufficient

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to deprive this Court of jurisdiction to decide the first question presented, it should so move orsuggest to the Court, and this new issue should be fully briefed. The tribal sovereignty issuespresented in this case are of nat ional s ignif icance an d recurr ing real world importance , and thedecision below" defies common sense" and is so "anomalous" that two members of the SecondC ircui t panel expressly (and the third implic i tly) urged this C ourt to reconsider i ts t r ibalsovereign immunity precedents. Gamesmanship by parties, and the specific maneuverings by theNation here, have no place in resolving the important questions submitted to this Court. Alitigant, having prevailed below, should not be allowed to "manipulate the Court's jurisdiction toinsulate a favorable decision from review." C i t y o f E r ie , 529 U.S. a t 288.

Very respectfully,pgArtiYik. AtALAA4-e-k----David M. Schraver

c ceth P. Waxman, Esq. (v ia e -mail )13257122,2

NIXON PEABODY LLP


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WILMERHALE

December 2 , 2010eth P. WaxmanHonorable W ill iam K . SuterC l er kSupreme C ourt of the United StatesO ne First St reet N.E.Washington, D.C . 2054 3

+1 202 663 6800(t)+1 202 663 6363(f)

[email protected]

Re: M a d i s o n Co u n t y a n d O n e id a Co u n t y , N e w Y o rk v . O n e id a I n d ia n N a ti on o f N e w Y o rk ,N o . 1 0 - 7 2Dear General Suter :

I am wri t ing in response to p et i tioners ' Decem ber 1 , 201 0 , le t ter regarding respondentO neida Indian N at ion 's waiver of sovereign immunity, as set for th in my let ter of N ovem ber 30 ,201 0. Pet i tioners ra ise a number of object ions , which are addressed in turn below.1 . The N at ion recognizes that i ts waiver of sovereign immunity at this s tage of thelitigation is unusual. The waiver, however, must be understood in context. In the decisionsbelow, the district court held, inter alia, that the subject prope rties are immune from taxation asa m a tt e r o f N e w Y o rk s t a te l aw . Pet. App . 44a -45 a, 73a-74a. Acc ordingly, in O ctober 2005 andJune 2006, i t permanently enjoined petitioners from imposing penalties and interest on unpaidtaxes and from en forcing their respect ive taxes on the N at ion 's land through foreclosure. Id. at50a , 78a. Pet i tioners appealed those judgments to the Second C ircui t, which heard oral argumenti n N o v e mbe r 20 0 7 .In 2008 , while the case was under submission to the cou rt of appeals , the N at ion postedirrevoc able letters of credit at the direction of the Depa rtment of the Interior to ensure paymen tof taxes, penalties, and interest to petitioners on the N ation's fee lands in the event they are heldto be due. The Department "con sidered the le tters of credi t and the N at ion 's com mitments , anddetermined that they will be adequate to sa tisfy tax liens for purp oses of ac quiring the SubjectLands into trust." 1 Petitioners, however, questioned the sufficiency of those letters in theirbriefing to this Court. Cert. Reply Br. 6-7 & n.2. The Nation's waiver of sovereign immunityresponds to pet i t ioners ' s ta ted concerns a nd is intended to remov e any do ubt that the N at ion willpay the amou nts ultimately held to be due.The parties continue to dispute whether and how much tax is due on multiple grounds,

including grounds that were not addressed by the Second C ircuit and were n ot presented in thepetition for certiorari. Thus, for examp le, the Secon d C ircuit did not address the taxability of theI See U.S. Department of the Interior , Bureau of Indian A ffairs, Record of Decision: O neida IndianN ation of N ew York Fee- to- Trus t Request , 53 ( May 2008 ) . A c opy of the Rec ord of Dec is ion wassubmitted to the Sec ond C ircuit below and is ava ilable atwww.oneidanationlegal.com/images/news/7.pdf.

Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue NW, Washington, DC 20006Beijingerlinostonrusselsrankfurtondonos Angelesew Yorkxfordalo Alto Walthamashington

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N ation 's land under s ta te law (N .Y. Indian Law 6 and N .Y. Real Prop. Tax Law 45 4) , andthe N ew York C ourt of Appeals reserved the issue ear l ier this year in Cayuga Indian Nation ofN e w Y o rk v . G o u ld , 930 N .E.2d 233 (N .Y. 201 0). The part ies a lso cont inue to dispute the properassessmen t of the N ation's land as a matter of both state and federal law, and whether penaltiesand interest may be imposed for p er iods in which the lands were held to be tax-exempt. Thoseissues a lso are not before this C ourt and remain to be l it igated. Under the c i rcum stances , theN ation respectfully submits that the letters of credit and waiver of sove reign immunity should beunderstood as good-faith efforts to provide petitioners with the necessary assurances that anyamounts due will be paid once they are judicially determined.

2. The C ounties quest ion the suff ic iency and scope o f the N at ion 's declarat ion andordinance. As to suff ic iency, they suggest that the N at ion 's waiver o f i ts sovereign immunityrepresents no more of a c ommitment than the le t ters of credi t themselves. The C ounties misreadthe waiver and m y let ter . The N at ion 's declarat ion and ordinanc e were pa ssed with the expressintent of addressing the very co nce rns about the letters of credit that the C ounties raised in theirreply brief . There , the C ounties argued that the le t ters did not assure payment of the disputedtaxes becau se they were "subject to c onditions and limitations that materially impair their value,"and they "impose various risks on the Counties." Cert. Reply Br. 6 n.2. While the Nationdisputes that characterization, the waiver addresses it , for i t assures the Counties payment of anytaxes that are lawfully due, und er penalty of foreclosure .The C ounties ' conc ern about the scope of the N at ion 's waiver is l ikewise misplaced.

Petitioners question whether the waive r guarantees paym ent not only of the taxes that arelawfully due, but also "additional interest and pena lties that have piled up ov er the past decad ewhile the underlying taxes have gone unpaid." Ltr. 2. First, it must be noted that the penaltiesand interest cov ered by the injunct ions are for the per iod p r ior to this C ourt 's decis ion in C i ty o fSherri ll v . One ida Ind ian Nat ion o f N ew Y ork , 544 U.S. 197 (2005 ) , during which i t was the lawof the Seco nd C ircui t that the lands were exempt from taxat ion. The dis t r ic t cou rt found thatimposition of such penalties and interest would be inequitable, Pet. App. 45a-46a, a conclusionthe Second C ircui t d id not dis turb. In any ev ent , the N at ion bel ieves that any interest andpenalties that are lawfully due are fairly enco mpassed by the ordinance, an d it hereby representsto this C ourt that i t will not raise its sovereign immu nity as a barrier to their enforcem ent throughforeclosure.

3. The Counties suggest that the waiver cannot be relied upon because it might berevoked by the Nation or invalidated by a court. Those concerns may be put to rest. First, theN ation's intent to bind itself in perpetuity is clear from the face of the dec laration and ordinanc e.Secon d, even i f the N at ion 's "i rrevoc abl[e] and perpetual[]" waiver were not suff ic ient to protectthe C ounties ' rights , the doctr ine of judicial es toppel would be. That doctr ine "prevents a par tyfrom prevailing in one phase of a case on an argument and then relying on a contradictoryargument to prevail in another phase." N e w H a m p s h i re v . M a i n e , 532 U.S. 742, 749 (2001 )

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(internal quotation marks omitted); see also Davis v . W akelee, 156 U.S. 6 8 0 , 6 8 9 ( 1 8 9 5 )("[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintainingthat position, he may not thereafter, simply because his interests have change d, assume acon trary position, especially if i t be to the prejudice of the party who has ac quiesced in theposition forme rly taken by him."). To be sure, in waiving its sovereign immu nity, the N ation hasnot "prev ail[ed]" in this l i t igation. N onetheless, the N ation con siders itself judicially estoppedfrom raising sovereign immunity as a defense to foreclosure actions to enforce state, county, orlocal real prope rty taxes; invites the entry of an order re flecting the irrevocability of i tsdeclaration and ordinance; and expressly disclaims any intention ever to revoke its waiver. 24. The C ounties suggest that the N at ion 's solemn and i r revocable waiver of i ts sovereignimmunity for suit is an effort "to manipulate the Court 's jurisdiction to insulate a favorable

decision from review." City of Erie v. Pap's A.M., 529 U.S. 277, 288 (2000). There is no basisfor that accusat ion. In waiving i ts sovereign immunity , the N at ion has given up som ething ofgreat importanc e to itan immu nity from suit that was upheld by all four of the federal judgesthat considered the issue s ince this C ourt 's dec is ion in Sherrill. It has done so to eliminate anycon cerns that taxes ultimately found to be due will be paid.The N at ion 's waiver wil l not operate to leave in place a rul ing in the N at ion 's favor.First , the N ation does not claim that the waiver renders the ongoing tax controversy between thepart ies moot. Although the issue of sovereign immunity has been remov ed from the c ase by theN ation 's waiver , i t i s nonetheless the case , as the C ounties pointed out , that "there are manyother questions to be resolved in this l it igation," which were no t addressed by the Sec ond C ircuitand are not presented in the pet i t ion for c er t iorar i . L tr . 3 . Second, i f this C ourt were to dec idethat those remaining issues should be decided by the Sec ond C ircuit in the first instance , theSeco nd C ircui t' s judgment in the N at ion 's favor w ould not remain in place; ra ther , that judgmentwould be vacated and the c ase remande d for fur ther l i tigation on the remaining issues. This case

2 The Counties point to no ground on which the waiver might be invalidated. The Counties c iteWisconsin v . Ho-Chunk N ation, 512 F.3d 921 (7th Cir. 2008) , and in particular the Seventh Circuit 'sdiscussion of Panzer v . D oyle , 680 N.W.2d 666 (Wis. 2004). In Panzer, th e Wisco n sin Su p r eme C o u r tconsidered a challenge brought by the state senate ma jority leader , state assem bly leader , and the jointcomm ittee on legislative organization against the governor , arguing that he lacked the a uthority , underseparation of pow ers principles , to waive the state's sovereign immunity in a gaming compa ct with anIndian tribe. In contrast , here, the C ounc il that enacted the N ation's ordinance is i ts sole decisionmakingbody.

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therefore is en tirely distinguishable from Erie, for petitioners will have an adequate opportunityto challenge the district court 's injunctions when the remaining issues are li t igated. 35. The dec is ion to waive the ap pl icat ion o f t r ibal sovereign immunity to property taxforeclosure required careful considerat ion by the N at ion 's newly-retained c ounsel and theN ation 's government prec isely because i t was intended to be permanent and to hav e importantlegal consequences. My suggestion that the par t ies address the implicat ions of the N at ion 'swaiver in their briefs and that the briefing schedule be modified to allow them to do so w asintended to ensure that the Counties have an adequate opportunity to address this development.We cer tainly do not object , howev er , to the C ounties ' suggest ion that the par t ies address thematter sepa rately. The C ounties state that the tribal sovereign immu nity issues presented in thiscase "are of national significance and recurring real world importance," Ltr. 4 , but the Petitionident ifies no c ase other than this one that has presented the issue. Because the N at ion 's waivermakes it unnecessary to address that question in this case, the Court may wish to directsubmissions from the parties to address whether the decision below should be vacated withinstructions to address the other ground s for the injunc tions.

Respectfully submitted,

Copies to: David M. Schraver, Esq.

3With respect to the Second Circuit 's decision on sovereign immunity, the Court may simply vacate thedecision below and rem and for further proceedings just as i t did last Term in K iyem ba et al . v . Obam a,130 S. C t. 1235 (201 0), af ter intervening diplomatic efforts by the United States materially altered thepremise of the question on which ce rtiorari had been gran ted. That option was not available in Eriebecause the decision on review in that case was from the Supreme Court of Pennsylvania, not a federalcourt of appeals. See Erie, 529 U.S. at 305 (Scalia, Thomas, JJ. , dissenting). O n remand, the Sec ondC ircuit would be free to address the remaining bases for the distric t court 's injunctions, which were fullybriefed and argued to that court in 200 7.

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NIXON PEABODYLLPATTORNEYS AT LAW1300 Clinton SquareRochester, New York 1460 4-1 792(585) 263-100 0Fax: (585) 263-16 00Direct Dial: (58 5) 2 63-1 341E-M ail: [email protected]

December 2, 201 0

VIA E-MAIL AND FEDERAL EXPRESSHonorable William K. SuterC l e r kSupreme C ourt of the United StatesO ne First Street N .E.Washington, DC 20543dmcnemeysupremecourt.gov

Re: Madison County and Oneida County, New York v. Oneida Indian Nation ofN e w Y o rk , N o . 1 0 - 7 2Dear General Suter:

We wri te on behalf of the pet it ioners , Madison C ounty and O neida C ounty, in reply tothe most recent letter of respondent's counsel, dated December 2, 2010. The parties now appearto agree that the Court should direct them to file separate submissions addressing the impact, ifany, of respondent's November 29, 2010 "declaration and ordinance." Petitioners respectfullysuggest that the C ourt direct the parties to submit simultaneous briefs on this issue, to befollowed by the submission of simultaneous responses. In the meantime, petitioners will serveand file their opening brief tomorrow, December 3, pursuant to the Court's long-establishedschedule, without attempting to respond in that brief to respondent's unanticipated action earlierthis week.

We disagree with many of the comments and arguments in respondent's latest letter to theC ourt , but we suspect the C ourt would prefer to receive br iefs on the new issues respondent hasattempted to inject into this case rather than receive continued letters on the subject. We mustunderscore again , however , that we s t rongly disagree with any suggest ion that respondents hav esomehow succeeded in unilaterally mooting or "remov[ing] from the case" the First QuestionPresented. Respondent continues to claim that it has "tribal sovereign immunity" with respect toin rem measures against the non-trust lands a t issue here i t s imply c laims to hav e now "givenup" that claimed "immunity" in this instance. (Pp. 3-4.) But as petitioners will demonstrate intheir opening brief, responden t has no "tribal sovereign immunity" to be "given up" with respectto these lands in the first instance. As petitioners will demonstrate separately, that issue has notbeen rendered moot by respondent's action this week. We also strongly disagree with thesuggestion that supplemental briefing focus simply on "whether the decision below should be

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Honorable William K. SuterD e c e mbe r 2 , 20 1 0Page 2

vacated with instructions to address the other grounds for the injunctions." (P. 4.) Even ifrespondent were found to have uni la teral ly moo ted the Firs t Quest ion Presented, the app ropriatedisposition would be to vacate the judgment below "with directions to the District Court todismiss" respondent's claims of "tribal sovereign immunity" with respect to these lands, and toensure that such dismissal were "with prejudice." Deakins v. Monaghan, 484 U.S. 193, 200(1988). Finally, we note that respondent's unilateral action this week has no bearing whatsoeveron the Second Question Presented, and that respondent's arguments with respect to that questionare simply a rehash of the same arguments it made in opposing certiorari.

Very respectfully,f w4)4 4 ,/k ( v 1 - 4'avid M. Schraver

c ceth P. Waxman, Esq. (v ia e-mail )

ja in second circuit

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